The Courts sentenced her to eight years’ imprisonment with three suspended years. This sentence was not based solely on the fraud but on her history of drug abuse as well. The Courts failed to consider the fact that Mrs De Villiers was the primary caregiver to her two young children when sentencing.

The South African Constitution expressly provides for the protection of the rights of children in section 28(1)(b) stipulates that every child is entitled to family or parental care. Section 28(2) further requires the best interests of the child be of paramount importance in every matter concerning such child. The sentencing of the primary caregiver of a child is one such matter. As the facts stood, Mr De Villiers was unable to care for the children – this was compounded by the fact that the couple was finalising a divorce and he did not reside with the family.

The State argued that it would be incorrect to overemphasise Mrs De Villiers’ personal circumstances and that the Court should rather concentrate on the seriousness of her offences. In setting aside the decision of the lower court, the SCA reviewed evidence provided by a probation officer, social workers and clinical psychologist. The evidence of these experts indicated the need for the presence of Mrs De Villiers in the lives of her children.

The SCA also relied on the landmark case of S v M in which the principle of the best interests of the child was discussed at length. The lower courts had failed to consider the best interests of Mrs De Villiers’s children. This illustrated the lack of attention to this principle by the courts despite its importance where the welfare of children is at stake. The SCA went on to request the Centre for Child Law (CCL) to apply to be admitted as amicus curiae – due to the importance of children’s rights in this matter.

Whilst the State opposed the appeal, it conceded that the failure to consider the best interests of the children, along with Mrs De Villiers’ progress as reflected in the reports of the various experts, was a grave misdirection on the part of the lower courts. Despite this concession, the State argued that a non-custodial sentence would be insufficient punishment for the nature of the offence.

The best interests of the child as protected in the Constitution must come first. The importance placed on children’s rights does not however negate the importance of other considerations. In S v M the court formulated what is now known as the Zinn triad and is used to weigh the best interests of a child during the sentencing of a primary caregiver. The three points to consider are the crime, the offender and the interests of society. The CCL highlighted that the best interests of the child must be considered independently and not in relation to the culpability of the offender. When this consideration takes place, the court must establish whether there will be an impact on the child, consider the child’s interests independently, attach the appropriate weight to those interests and ensure that the child will be taken care of if the primary caregiver is sent to prison. The end result of the sentencing should not be to place children at risk.

After careful consideration, the SCA imposed a sentence of three years from which the accused could be placed under correctional supervision at the discretion of the Commissioner or a parole board.

This decision is not to be interpreted in a way that mitigates sentencing purely because the accused/appellant has children. In MS v S the accused was a repeat offender and was not the sole caregiver of her children as she was married to and lived with her husband. A custodial sentence in that case would not compromise the best interests of the children she left behind.

A balance must be struck between incarceration as a deterrent and punishment on the one hand, and the best interests of the children on the other. In this case, an extended sentence would be detrimental to the children and would therefore not be justifiable. A case by case analysis is necessary as the variables differ according to each matter but in all the cases, one fact remains true. The best interests of the child cannot be overlooked and neither can they be treated as incidental in the life of the accused.

By Rebecca Sibanda; Intern: Centre for Constitutional Rights